R. v. McKenna (H.), (2015) 443 N.B.R.(2d) 1 (SCC)

• Judge: Abella, Moldaver, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 11, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 443 N.B.R.(2d) 1 (SCC);2015 SCC 63

R. v. McKenna (H.) (2015), 443 N.B.R.(2d) 1 (SCC);

    443 R.N.-B.(2e) 1; 1159 A.P.R. 1

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. DE.017

Renvoi temp.: [2015] N.B.R.(2d) TBEd. DE.017

Her Majesty The Queen (appellant) v. Harry McKenna (respondent)

(36506; 2015 SCC 63; 2015 CSC 63)

Indexed As: R. v. McKenna (H.)

Répertorié: R. v. McKenna (H.)

Supreme Court of Canada

Abella, Moldaver, Wagner, Gascon and Côté, JJ.

December 11, 2015.

Summary:

Résumé:

The accused was convicted of the second degree murder of Blair. He appealed his conviction.

The New Brunswick Court of Appeal, Quigg, J.A., dissenting, in a decision reported at 436 N.B.R.(2d) 264; 1139 A.P.R. 264, allowed the appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 214.6

General principles - Common law defences - Accident - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 1263

Offences against person and reputation - Murder - General principles - Intention - The accused appealed his conviction for second degree murder, asserting that the trial judge erred in instructing the jury on the issue of accident - The New Brunswick Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred by opening a defence of accident to allow the possibility of an acquittal to the included offence of manslaughter in circumstances where there was no supporting evidence, and where such a defence was not an option and was not pursued by the accused - The judge failed to adequately and correctly explain to the jury the connection between the defence of accident and the intent required for second degree murder - The judge repeated the boilerplate instruction that the Crown had to prove murderous intent beyond a reasonable doubt and that if it failed to prove that specific intent, then the killing was manslaughter - However, the jury was told earlier that it was open to them to find the accused not guilty of murder or manslaughter if they found that the defence of accident applied - The judge's failure to properly link the concept of accident to mens rea constituted a misdirection which called for a new trial - It was insufficient to deal with the general issue of intent without instructing specifically on how accident operated to negate intent - The Supreme Court of Canada dismissed the Crown's appeal stating that "The errors of law in connection with the failure to identify the unlawful act and to properly instruct the jury on the elements of manslaughter are such that the curative proviso is inapplicable."

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 1266

Offences against person and reputation - Murder - Jury charge - Included or alternative offences - The accused appealed his conviction for second degree murder, asserting that the trial judge erred in law in instructing the jury on the possibility of a verdict of manslaughter - The New Brunswick Court of Appeal allowed the appeal and ordered a new trial, stating that "Apart from many boilerplate references to the possibility of a verdict of manslaughter if the Crown failed to prove murderous intent, the jury was never told what the term manslaughter meant." - The Supreme Court of Canada dismissed the Crown's appeal, stating that "The errors of law in connection with the failure to identify the unlawful act and to properly instruct the jury on the elements of manslaughter are such that the curative proviso is inapplicable."

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 1300

Offences against person and reputation - Murder - Defences - Accident - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 1263 and Criminal Law - Topic 1266 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 1263 and Criminal Law - Topic 1266 ].

Counsel:

Avocats:

[None disclosed].

Solicitors of Record:

[None disclosed].

This appeal was heard by Abella, Moldaver, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada, on December 11, 2015. On the same date, Abella, J., delivered the following oral judgment for the court in both official languages, which was filed on December 14, 2015.